The Queen’s Bench Division of the English High Court dealt with two substantial cases earlier this year relating to overseas travel arrangements and employers’ duty-of-care. While the facts of any case will differ, both cases show some of the steps, risk assessments and checks that employers would be expected to comply with, to meet the standard of duty-of-care that is required.
In breach
Defendant company Stormharbour Securities was a global markets and financial advisory firm with a project in Peru, and Tomas Dusek was their employee. The relationship was governed by an English employment contract. A visit to Peru was arranged for Dusek and others, part of which required transportation by helicopter. On June 6, 2012, a fatal accident occurred in which Dusek and 13 others were killed.
The legal claim was brought by Dusek’s widow and children under the Fatal Accidents Act 1976. They alleged that Stormharbour was in breach of its duty-of-care as employers to provide Dusek with a safe place of work, safe equipment and a safe system of working, arising from the arrangements for the helicopter flight.
Because of poor planning for the helicopter journey by the operator, part of the route resulted in a flight by night, when the helicopter struck a mountainside.
The court found that the accident was caused by a lack of knowledge or disregard of limitations to the helicopter, the extremely demanding environment of mountainous terrain, the deteriorating weather conditions and leaving at a time which would require night flying. The crew were tired and should have known they were flying in breach of local regulations.
The judge stated said that employers owe a personal duty to their employees to take reasonable care for their safety, to avoid an employee facing an unnecessary risk. The employers were found liable for breach of duty-of-care in relation to their arrangements with the operator. The case shows the need to consider the safety of transport arrangements in cases such as this. Senior management were aware that the project site was in a remote part of the Andes. It was for the employer to have properly investigated the quality of the helicopter supplier, and to have been aware of the flight risks, and it was, therefore, insufficient for Stormharbour to do nothing. A risk assessment should have been carried out. The claimants’ case was proved on liability and the employer found to be in breach of its duty-of-care to Dusek.
Risk assessment
In another case in the Queen’s Bench Division of the High Court, a small aircraft crashed into a hillside in a remote part of the Republic of Congo and all 11 people on board were killed, including six members of the board of directors of Sundance, which had chartered the plane from Aero-Service.
Again, the aircraft provided had inadequate risk assessment procedures. The judge found that the causes of the crash were pilot error and a failure to identify the proximity of a mountain ridge. There was a lack of proper safety procedures, with no safety policy or emergency response plan. There was no facility for flight planning.
The judge found that Sundance had assumed a responsibility for its employees in respect of the trip and, in particular, relating to the flight that crashed. They were in complete control and organisers of the trip. The duty-of-care owed by Sundance was to take reasonable care when selecting the aviation carrier.
However, in this case the duty was only to select the charter-flight company operating the flight. The facts used to select the charter flight company were, in fact, adequate to satisfy Sundance that it appeared to be in compliance with safety precautions and that, therefore, there was no breach of duty on the part of Sundance in this case.
While these cases are similar, relating to the selection of helicopter or aircraft by charter in third-world countries, the cases demonstrate the obligation for employers to review, check and ensure that operations are safe, comply with the duty-of-care owed to employees, and comply with local safety standards.
Ian Skuse is a Partner in Blake Morgan’s Aviation team (blakemorgan.co.uk) and is based in their London office. Ian was a Partner with Piper Smith Watton LLP, which merged with Blake Morgan LLP on August 1, 2015.